Citation Nr: 1526044
Decision Date: 06/18/15 Archive Date: 06/26/15
DOCKET NO. 14-02 090 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUE
Whether new and material evidence has been submitted sufficient to reopen the claim of basic entitlement to nonservice connected disability pension benefits, and if so, whether the Veteran is entitled to the benefit.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Amanda Christensen, Associate Counsel
INTRODUCTION
The Veteran had active military service from May 13, 1968 to July 15, 1968.
This appeal comes to the Board of Veterans' Appeals (Board) from an August 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.
The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in September 2014; the hearing transcript has been associated with the file and has been reviewed.
FINDINGS OF FACT
1. A May 2004 decision denying entitlement to a nonservice-connected pension is final. The Veteran did not appeal that decision and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran.
2. Evidence added to the claims file since the May 2004 decision is not new and material and does not include any relevant service department records not previously associated with the file.
CONCLUSIONS OF LAW
1. The May 2004 decision denying entitlement to a nonservice-connected pension is final. 38 U.S.C.A.§ 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014).
2. New and material evidence has not since been presented to reopen the Veteran's previously denied claim for nonservice-connected pension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran contends he is entitled to nonservice-connected pension.
As applicable in this case, pension is payable to a veteran who served in the active military, naval, or air service for ninety days or more with at least one day during a period of war. If the veteran served less than ninety days, pension is payable if the Veteran served during a period of war and was discharged or released from such service for a disability adjudged service-connected without the presumptive provisions of law, or at the time of discharge, he had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. 38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. § 3.3 (2014).
The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2014); see also 38 C.F.R. § 3.6 (2014).
Previously, in July 2002 and again in May 2004, the RO denied the Veteran's claim for nonservice-connected disability pension. The Veteran did not appeal the RO's decisions, and they became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103 (2014).
As the basis for the May 2004 decision, the RO determined that the Veteran did not meet the basic requirements of the law for nonservice connected disability pension because his military records showed that he served less than 90 days of active service and was not terminated from service because of a physical disability incurred in or aggravated by service, nor was he service-connected for a disability at the time of his separation from service for which he could have been discharged for medical reasons.
The evidence considered by the RO at that time included records as to the Veteran's periods of active duty ACDUTRA service, including the period from July 1964 to December 1964, as well as active duty service from May 13, 1968 to July 15, 1968, including his 1968 Medical Board Proceedings recommending his separation from service for a preexisting condition that was not aggravated by service.
The Veteran submitted an application to reopen his claim for nonservice-connected pension in July 2010. The RO denied the application in August 2010.
The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996).
New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2014).
The new copies of the Veteran's DD-214s reflecting ACDUTRA from July 1964 to December 1964 and active duty service from May 13, 1968 to July 15, 1968 are duplicative or redundant of records previously considered by the RO. The Veteran's Board testimony regarding his hearing loss and tinnitus beginning after firing cannons during active duty is also duplicative or redundant of statements he made previously that were in the record at the time of the last prior decision denying eligibility for nonservice-connected pension.
The Board notes that the Veteran was denied service connection for bilateral hearing loss in a September 1969 rating decision. In a July 2002 rating decision the RO found there was no new and material evidence to reopen the claim. The Veteran did not appeal either decision, and they became final.
Thus, having reviewed the record, the Board finds new and material evidence has not been received to reopen the Veteran's claim for nonservice-connected pension benefits.
It is noted that the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, provides, among other things, for notice and assistance to claimants under certain circumstances. Congress, in enacting the VCAA, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129 (2002). When the law and not the evidence is dispositive of the claim, the VCAA is not applicable. See id. at 132. In this case, as the law is dispositive, the VCAA is also not applicable.
ORDER
The claim to reopen entitlement to nonservice-connected pension is denied.
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M. Tenner
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs